A fall, indeed

Perhaps not the first time such a switch from the highest court in the country to the restful pastures of the house of elders has been made

M L Kotru

Srinagar, March 22, 2020, 12:00 AMMarch 21, 2020, 10:38 PM

UPDATED: March 21, 2020, 10:38 PM

Mr. Ranjan Gogoi, relived as the Chief Justice of India some
four months ago, was back in the news last week when he took oath as a newly
nominated member of the House of Elders, the Rajya Sabha. Raised eyebrows there
were many, but the former Chief Justice was confident that the critics of the
switch would soon be silenced. The magic wand, not his words, would soon clear
the air, the learned former CJI suggested. Perhaps not the first time such a
switch from the highest court in the country to the restful pastures of the
house of elders has been made. For the records has been repeatedly pointed out
Chief Justice the Ranganath Mishra was inducted into the Rajya Sabha during Mr
Rajiv Gandhi’s time as Prime Minister and Mishra, in any case had joined the
Congress before his being elected to the Rajya Sabha. The difference in the Gogoi
appointment now lies in the fact that he was nominated by the President within
four months of his retirement whereas Mr. Mishra waited in the wings for over
nine years for induction into the upper house, as an elected member not that
the court has traversed a straight narrow path in the years gone by. Mrs.
Gandhi’s Emergency saw the court subjected to unwarranted and unwholesome moves
including supersession and even causing the resignation of one of its more
illustrious judges, Mr. H.R. Khanna. Mrs Gandhi had openly spoken in favour of
a committed judiciary, a la Franklin D. Roosevelt, US President of the 40s.
These seemingly unrelated events illustrate the stress and strain the Supreme
Court has undergone for instance in the 70s and the early 80s, emergency years
and the aftermath.

A notable one was the resignation from the Supreme Court, in
order to join politics by Justice Bahrul Islam. The second was signaled by
Justice D. Chinnappa Reddy by underlining socialism as a key component of the
constitution and the country. And the third was the Supreme Court judgment in
the coking coal case by a Bench comprising Justices P.N. Bhagwati, Reddy, E.S.
Venkataramaiah, Bahrul Islam and A.N. Sen. The circumstances and the motives
which led to Bahrul Islam’s resignation from the court cannot but depress.
Justice Islam resigned from the apex court on January 13, 1983. His inclusion
as a Congress candidate for the Barapeta parliamentary seat in Assam (Mr.
Gogoi’s State) was announced on January 14. The fact is that on January 12 Mr.
Islam was included in the party list, causing many eyebrows to be raised as to
how a sitting judge could figure in a party list of candidates. That’s how
Justice Islam’s resignation materialized.

The implications are clear. Here was a Supreme Court judge
clearly in touch with a political party to become a Lok Sabha candidate even
while sitting on the bench. It would strain credulity to believe that Congress
had considered Mr. Islam’s candidature without his knowledge. I shall leave
justice Chinappa Reddy out of the present discourse for his was basically a
doctrinal approach to the Constitutional process. Mr. Reddy viewed the
Constitution in Marxist terms of class struggle and he would indeed become
relevant when and if the BJP MP Mr. Rakesh Sinha, acts on his already announced
intention to move a Constitutional amendment to remove the word Socialist from
the preamble gets deleted. Mr. Gogoi’s actions on the other hand cast doubt on
the court as a whole; judgments will now be attributed to political motives. As
the highly regarded columnist Pratap Bhanu Mehta notes in an era where ordinary
citizens are struggling to safeguard their citizenship rights and basic
constitutional standing Justice Gogoi’s actions say to us: The law will not
protect you, because it is compromised, the court will not be a countervailing
power to the Executive because it is supreme, and judges will not empower you
because they are diminished men. Think of the number of potentially interesting
justices whose concerns have been derailed by mere innuendo, most recently
Justice A.P. Shah and Gopal Subramanian. Think of the arbitrary transfer of
Justice S. Murlidhar. Set Justice Gogoi’s nomination to the Rajya against this
background. Here is a Chief Justice who was accused of sexual harassment, the
alleged victim being removed from service after an internal scrutiny and
restored now to her job, as Gogoi departed with dues paid retrospectively.

To conclude, let me quote retired Justice Madan B Lokur:
there has been speculation for sometime now about what honour would Justice
Gogoi get. In that sense the nomination is not surprising, but what is
surprising is that it came so soon. “This redefines the independence,
impartiality and integrity of the judiciary”.

Incidentally in January 2018 Justice Gogoi, Lokur,
Chelmeshwar, and Kurien Joseph, the most senior judges of the Supreme Court
then, had in an unprecedented move called a press conference to question the
conduct of the then Chief Justice Dipak Misra. Gogoi had surprised his
colleagues then because he was the nest CJI in succession. A fall indeed.

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